Prosecutors in the case of the suspected transit-bomber Najibullah Zazi have served notice in the federal court in Denver that they intend to use provisions of the Foreign Intelligence Surveillance Act (“FISA”) that will protect sensitive information from public disclosure. [See later post here with more filings.]

What follows is an overview of some of the relevant filings, law, and controversies around FISA.

The Government’s Notice

The United States of America … hereby provides notice to defendant Najibullah Zazi and to the Court , that pursuant to Title 50, United States Code, Section 1806(c) and 1825 (d), that [sic] the United States intends to offer into evidence, or otherwise use or disclose in any proceedings in the above-captioned matter [United States v. Najibullah Zazi], information obtained and derived from electronic surveillance and physical search conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 (“FISA”), as amended, 50 U.S.C. SS 1801-1812 and 1821-1829.

“Notice of Intent To Use Foreign Intelligence Surveillance Act Information,” United States v. Najibullah Zazi, U.S. District Court for the District of Colorado, Docket No. 09-cr-03001-CBS, September 21, 2009.

Different Views of FISA

Law enforcement, intelligence community view:

Virtually all counter-terror and counter-intelligence agents in the United States regard FISA and its various amendments as essential to their work:

FISA has since its enactment been a bold and productive tool in this country’s fight against the efforts of foreign governments and their agents to engage in intelligence-gathering aimed at the U.S. government, either to ascertain its future policy or to effect its current policy, to acquire proprietary information not publicly available, or to engage in disinformation efforts. With the enactment of the USA PATRIOT Act FISA has been expanded and broadened to make it a useful tool in exposing and combating foreign terrorist groups’ efforts to target the United States.

The Foreign Intelligence Surveillance Act (FISA), born after the Watergate scandal, establishes how the government can secretly eavesdrop on Americans in their own country in intelligence investigations. It was originally passed to allow the government to collect foreign intelligence information involving communications with “agents of foreign powers.”

On July 10, 2008, President Bush signed the unconstitutional FISA Amendments Act of 2008 (FAA), supposedly aimed at “updating” the Foreign Intelligence Surveillance Act (FISA). Unfortunately, the law meant to “update” FISA instead gutted the original law by eviscerating the role of the judicial oversight in government surveillance. The law also gave sweeping immunity to the telecommunications companies that aided the Bush administration’s unconstitutional warrantless wiretapping program by handing over access to our communications without a warrant. On the same day the FAA was signed into law, the ACLU filed a lawsuit challenging its constitutionality.

This is not the first time that Congress has undermined FISA. The USA Patriot Act, passed in 2001 and re-authorized in 2006, amended FISA to make it easier for the government to obtain the personal records of ordinary Americans from libraries and Internet Service Providers, even when they are not suspected of having connections to terrorism.

Congressional leadership has promised to address the issues surrounding the FISA Amendments Act before it sunsets in 2012 during the 2009 debate over reauthorization of USA Patriot Act provisions. Until then, the ACLU will fight in the courts to block the law from taking effect.

An annual report to Congress from the Justice Department contains statistics about FISA use, as well as discussion of some of the topical issues surrounding it. Here are the statistics:

During calendar year 2008, the Government made 2,082 applications to the Foreign Surveillance Court (hereinafter “FISC”) for authority to conduct electronic surveillance and physical search for foreign intelligence purposes. The 2,082 applications include applications made solely for electronic surveillance, applications made solely for physical search, and combined applications requesting authority for electronic surveillance and physical search.

During calendar year 2008, the FISC approved 2,083 applications for authority to conduct electronic surveillance and physical search (two applications filed in calendar-year 2007 were not approved until calendar-year 2008). The FISC made substantive modifications to the Government’s proposed orders in two of those applications. The FISC denied one application filed by the Government during calendar year 2008.

For the wonks still with us, here are excerpts from the basic law. There are many more provisions that should be reviewed to get a complete understanding, which eludes even the most nimble legal minds in Washington and Kabul, but these seem most relevant to the moment:

50 U.S. Code 1806

(c) Notification by United States

Whenever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this subchapter, the Government shall, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the Government intends to so disclose or so use such information.

50 U.S. Code 1825

(d) Notification by United States

Whenever the United States intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from a physical search pursuant to the authority of this subchapter, the United States shall, prior to the trial, hearing, or the other proceeding or at a reasonable time prior to an effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the United States intends to so disclose or so use such information.

…

§ 1801. Definitions

As used in this subchapter:

(a) “Foreign power” means—

….

(4) a group engaged in international terrorism or activities in preparation therefor;

…

(b) “Agent of a foreign power” means—

(1) any person other than a United States person, who—

…

(C) engages in international terrorism or activities in preparation therefore…

…

(f) “Electronic surveillance” means—

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or

(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

§ 1821. Definitions

…

(5) “Physical search” means any physical intrusion within the United States into premises or property (including examination of the interior of property by technical means) that is intended to result in a seizure, reproduction, inspection, or alteration of information, material, or property, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, but does not include

(A) “electronic surveillance”, as defined in section 1801 (f) of this title, or

(B) the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 1801 (f) of this title.

Tom Diaz is a lawyer, author, journalist, and an accomplished public speaker. Diaz was formerly Democratic Counsel to the Subcommittee on Crime and Criminal Justice of the Judiciary Committee of the U.S. House of Representatives. He worked for then-Rep. Charles E. Schumer. His principal brief covered issues related to terrorism ... Continue reading →